State of Punjab vs Gurjant Singh

B.S. Nehra, J.

Respondent Gurjant Singh was tried by Shri S.S. Chahal, Additional Sessions Judge, Patiala under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act'') for keeping in his possession 2 kilos 50 grams of poppy straw. Vide impugned judgment dated 21.4.1988, the trial Court acquitted him of the charge by giving him the benefit of doubt. Being aggrieved against this judgment of the trial Court, the State of Punjab has preferred this appeal for its reversal.

The facts of the case are that on 13.2.1987, Assistant Sub Inspector Gurnam Singh along with other police officials was going on patrol duty from Bus Stand Shatrana towards Patran. When the police party reached near the canal bridge in the revenue limits of Shatrana, the respondent was seen coming from the opposite side. He was having a bag in his hand. On seeking the police party, he tried to slip away. On suspicion, he was apprehended. On his personal search, Poppy straw was recovered from the bag. It was found to be 2 kilo 50 grams in weight. A quantity of 50 grams was separated as sample. The sample and the remaining poppy straw were separately sealed. Intimation Exhibit PB was sent to the Police Station, on the basis of which formal first information report Exhibit PB/1 was registered. On receipt of the report Exhibit PD of the Chemical Examiner, the respondent was sent up for trial. He pleaded not guilty to the charge and claimed trial. After the conclusion of the prosecution evidence, the respondent denied the prosecution allegations put to him for his explanation while recording his statement under Section 313 of Criminal Procedure Code.

We have heard Shri Randhir Singh, Assistant Advocate General, Punjab, for the appellant, and Shri Sarwan Singh, Advocate, for the respondent, and gone through the evidence on record.

In this case, the prosecution has failed to comply with the mandatory provisions of Section 50 of the Act and, therefore, the trial of the respondent stood vitiated on that score. Section 50 of the Act reads as under :

"50. Conditions under which search of persons shall be conducted.

(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the department mentioned in Section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subSection (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by any one excepting a female."

Interpreting this provision in Hakam Singh v. Union Territory, Chandigarh, 1988 Recent Criminal Report 20 : 1988(2) Chandigarh Law Reporter 57; State of Himachal Pradesh v. Sudarshan Kumar alias Kala, 1989(2) Recent Criminal Report 317 (DB) : 1989(1) Chandigarh Law Reporter 240 and Amrit Singh v. State of Haryana, 1990(2) R.C.R.(Criminal) 525, Criminal Appeal No. 513DB of 1987 decided on September 27, 1989, their Lordships observed :

"The most glaring and serious flaw, however, in the prosecution case, is with regard to the manner of the search of the appellant Amrit Singh, under the Act. A reading thereof would show that if any person to be searched so requires, he has to be taken to a gazetted officer or to the nearest magistrate and then searched in his presence. According to both, PW1 Sub Inspector Narpat Singh and PW2 Sub Inspector Joginder Singh, such option was given to the appellant but was declined by him. In other words, this safeguard provided by Section 50 of the Act is said to have been waived by the appellant and all we have, to prove this, is the word of two police officers.

The provisions of Section 50 of the Act are mandatory in terms and it also stands so settled by judicial precedents, one of which is provided by the judgment of this Court in Hakam Singh v. Union Territory, Chandigarh, 1988(2) Chandigarh Law Reporter 75. Reference may here also be made to the judgment of the Division Bench of the High Court of Himachal Pradesh in State of Himachal Pradesh v. Sudarshan Kumar, 1989(2) R.C.R.(Criminal) 317 : 1989(1) Chandigarh Law Reporter 240 where it was held that the person about to be searched must be informed of his right, under Section 50 of the Act, to be searched in the presence of a Magistrate or a Gazette Officer. Violation of this provision, it was held, would per se be fatal to the prosecution case. Further, it was observed that such offer, should as far as practical be made in the presence of two independent and respectable witnesses of the locality and if the designated officer fails to do so, the onus would be on the prosecution to prove that association of such witnesses was not possible on the facts and circumstances of a particular case.

In dealing with the provisions of Section 50 of the Act, it cannot but be observed that, it would be rendering them nugatory if the safeguard provided thereby to the person apprehended to be searched in the presence of a gazetted officer or Magistrate can be brushed aside on merely the bald statement of a police officer, that such offer was declined by him. As is well known, the legislature has always been somewhat wary of accepting statements made to the police, as would be apparent from the provisions of Section 162 of the Code of Criminal Procedure, whereby statements made by an accused to the police in the course of investigation, are made inadmissible and if such statement is a confession, it is also hit by Section 25 of the Evidence Act. The provisions of Section 50 of the Act have thus to be construed in this context. To give meaning and content of the clear legislative intent underlying the safeguard provided by Section 50 of the Act, cogent and reliable evidence and not merely the statement of a Police Officer, must be brought on record to establish that the person to be searched was informed of his right to be searched in the presence of a gazetted officer or magistrate but he chose to decline this offer. In Sudarshan Kumar''s case (supra) it has no doubt been suggested that such offer should be made before two reliable and independent witnesses, but with respect it would be appropriate and more in consonance with the interests of justice that as a rule of general practice, the person apprehended should be taken before a gazetted officer or magistrate and searched in his presence. The stringent minimum punishment prescribed by the Act clearly renders such a course imperative. Search otherwise than before a gazetted officer or Magistrate should, therefore, be the exception and that too for sound and convincing reasons founded upon reliable material on record. The onus of showing that the person to be searched declined such option is upon the prosecution.

Seen in this light, there can be no escape from the conclusion that violation of the provisions of Section 50 of the Act, in the case of the appellant Amrit Singh, stands writ large."

In the instant case, none of the provisions of Chapter V of the Act, has been complied with. As a matter of fact, these provisions have been followed, if one may say so, more in breach than in compliance. It is, thus, patent that neither the officer arresting Assistant Sub Inspector Gurnam Singh PW1 was entitled to arrest the respondent nor could he conduct these in violation of the relevant provisions contained in this Chapter nor has the article i.e. the poppy straw recovered been seized or secured in the manner provided for in this chapter. In the face of these violations of the mandatory provision of this chapter, the conviction of the respondent can obviously not stand.

Relying on the ratio of the judgments in Hakam Singh''s case (supra), Sudarshan Kumar alias Kala''s case, 1988 (1) Recent Criminal Report 20 (supra) and Amrit Singh''s case (supra), we have no hesitation in holding that since the prosecution has failed to comply with the relevant provision of the Act, as discussed hereinbefore there is no ground to interfere with the judgment of acquittal recorded by the trial Court.

For the reasons recorded above, the appeal fails and is dismissed.